Wednesday round-up

Posted Wed, April 3rd, 2013 2:45 pm by Conor McEvily

Coverage of last week’s arguments in Hollingsworth v. Perry (challenging California’s Proposition 8) and United States v. Windsor (challenging the federal Defense of Marriage Act) continues to preoccupy Court watchers. At Talking Points Memo, Sahil Kapur discusses the prospect that Justice Thomas could vote to strike down the federal Defense of Marriage Act (DOMA), suggesting that, “[i]n this case, [Justice Thomas’s] storied record against federal power appears to line up neatly with an argument, backed by some conservative and libertarian scholars, for overturning [DOMA].” Elsewhere at Talking Points Memo, Kapur speculates that the Chief Justice “may have revealed his antipathy to federal marriage equality by attempting to discredit an argument by Justice Anthony Kennedy that [DOMA] violates states rights.” And in a podcast for the N.Y.U. Review of Law & Social Change, Jennifer C. Pizer and Dean Spade discuss the same-sex marriage cases.

Court watchers also continued to cover orders issued on Monday from the Court’s March 29 Conference. At her “On the Case” blog for Thomson Reuters, Alison Frankel discusses two of Monday’s cases in which the Court granted certiorari, vacated class action rulings by the lower courts, and remanded the cases for further reconsideration in light of its recent opinion in Comcast v. Behrend. Frankel notes that the move “signal[s] that, at the very least, class action lawyers – and not just those in the antitrust bar – will have to address the Comcast opinion if they’re going to win certification rulings.” And at Education Week, Mark Walsh discusses two cases in which the Court denied cert. on Monday, involving the termination of a teacher and the transfer of a high school custodian.

Additional coverage of the Court focused on upcoming cases. At this blog’s “SCOTUS for law students” feature, Stephen Wermiel discusses the issues in Agency for International Development v. Alliance for Open Society International, Inc., scheduled for argument later this month. The case stems from a challenge by nongovernmental organizations to regulations implementing a federal law that provides funds to help combat the spread of HIV and AIDS throughout the world. “The case is important to law students studying constitutional law generally and First Amendment more specifically,” Wermiel writes, “because it raises significant questions about both the spending power of Congress and the free speech limitations on federal regulations.”

Finally, the debate over whether oral arguments should be televised resurfaced again yesterday. At The Hill’s “Congress Blog,” Robert Green and Adam Rosenblatt argue that allowing the Court’s hearings to be televised would be in the public and the Court’s best interest: “[t]he [J]ustices need to realize that their role in our democracy and the legitimacy of their institution and rulings are threatened by their lack of transparency through the shunning of cameras.” The La Crosse (Wisc.) Tribune editorial board makes a similar argument: “[w]hy are cameras important? Because they help us demystify the process – just as C-SPAN cameras have taken us inside Congress for decades.”

Briefly:

At the Washington Post’s “Post Partisan” blog, Jonathan Bernstein looks ahead to what the next Supreme Court nomination might look like in the Senate.

At Cato@Liberty, Roger Pilon responds to a recent Bloomberg View column by Ramesh Ponnuru (which Sarah covered in yesterday’s round-up) in which Ponnuru challenges the view that the Court has played a crucial role in advancing “greater freedom and justice.” “The history Ponnuru . . . recounts,” Pilon writes, “is, not surprisingly, selective.”

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.